Maytown Sand & Gravel, LLC v. Thurston County

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DATE 2018
CMiB'jusTKe I SUSAN LGARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
MAYTOWN SAND AND GRAVEL,LLC, No. 94452-1
Respondent,
V. EN BANC
THURSTON COUNTY,
Petitioner,
Filed AUG 0 9;2018
BLACK HILLS AUDUBON SOCIETY and
FRIENDS OF ROCKY PRAIRIE,
Additional Defendants,
PORT OF TACOMA, a Washington special
purpose district.
Respondent.
PORT OF TACOMA, a Washington special
purpose district.
Respondent,
V.
THURSTON COUNTY,
Petitioner,
BLACK HILLS AUDUBON SOCIETY and
FRIENDS OF ROCKY PRAIRIE,
Additional Defendants,
MAYTOWN SAND AND GRAVEL LLC,
Respondent.
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
GORDON McCLOUD, J.—The Land Use Petition Act (LUPA), chapter
36.70C ROW,bars parties from challenging a local land use decision in state court
if the parties fail to exhaust the administrative process. ROW 36.70C.030. The
central issue in this case is(1)whether that administrative exhaustion rule applies to
all tort claims that arise during the land use decision-making process. The other
issues are (2) whether there was sufficient evidence to support the jury's finding of
a substantive due process violation under 42 U.S.C. § 1983 (Section 1983); (3)
whether an aggrieved party can recover prelitigation, administrative fora attorney
fees intentionally caused by the tortfeasor under a tortious interference claim; and,
lastly, (4) whether the Court of Appeals erred in awarding a request under RAP
18.1(b) for appellate attorney fees that was not made in a separate section devoted
solely to that request.
We affirm the Court of Appeals on all but the third issue. We hold that (1)
LUPA's administrative exhaustion requirement does not bar all tort claims,(2)there
was sufficient evidence to support the jury's finding that Maytown Sand & Gravel
LLC's(Maytown)substantive due process rights were violated under Section 1983,
(3)the tortious interference claims pleaded in this case do not authorize recovery of
prelitigation, administrative fora attorney fees, and (4)the Court of Appeals did not
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
err in awarding appellate attorney fees under RAP 18.1(b). We therefore affirm in
part and reverse in part.
I. Facts and Procedural History
In late 2009, Maytown purchased real property in Thurston County from the
Port of Tacoma (Port) for the express purpose of operating a mine. The property
came with an approved 20-year special use permit (permit) from Thurston County
(County)for mining gravel.
That permit was originally issued in 2005 to the previous owner, Citifor, after
protracted negotiations with numerous community stakeholders and extensive
environmental studies. Because the proposed mining site is located adjacent to one
of Washington's largest tracts of prairie-oak-wetland habitat, the proposed project
stirred significant opposition from nearby residents, Indian tribes, and environmental
conservationists. Trial Ex.(Ex.) 303. The lead environmental group opposing the
mine back then was the Black Hills Audubon Society(BHAS). Citifor and BHAS
eventually reached an agreement balancing Citifor's mining interest with BHAS's
environmental concerns. In exchange for BHAS dropping its opposition to the mine,
Citifor agreed to significantly reduce the amount of gravel it originally planned to
excavate, to reclaim the property as a wetland once the reduced gravel amount was
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
excavated, and to sell over 800 acres of other property it owned to the state for
wildlife conservation. Ex. 429.
But in 2006, the year after the permit was issued and before mining activities
began, Citifor sold the property with the permit to the Port. The issues in this case
arose four years later when Maytovm and the Port sought to use the permit. Even
though BHAS had signed off on the permit, other conservation groups and local
residents remained opposed to the mine. Maytown and the Port claim that the
County's board of commissioners (Board) succumbed to political pressure from
these mine opponents and directed the County's Resource Stewardship Department
(Department) to impose unnecessary procedural hurdles meant to obstruct and stall
the mining operation.
Although Maytown already had a permit to mine the property,the Department
remained involved because four key issues needed to be addressed. First,the Friends
ofRocky Prairie(FORP),an environmental conservation group, was challenging the
validity of the permit. Second, two missed water quality testing deadlines listed in
the permit needed to be addressed. Third,there was a discrepancy between the water
quality monitoring requirements listed in the permit and the corresponding
groundwater monitoring plan that needed to be clarified. Fourth,the permit was due
for its five-year review before the hearing examiner.
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
Because the property had been designated by the County as "mineral land of
long term commercial significance," the County was obligated to balance the
protection of the mineral land with the protection of critical areas. Ex. 429, at 46.
As discussed below, the Department's decisions as to each of the four key issues
were generally favorable to Maytown and the Port but came after significant delay
and expense.
A. FORP's Claim That the Permit Had Lapsed Due to Inactivity or
Noncompliance with the Permit's Water Quality Monitoring
Conditions
Sometime in early 2009,local environmental conservationists learned that the
Port was planning to sell the property that it had purchased from Citifor as a
permitted gravel mine. These individuals formed a group, FORP,to stop the mine.
FORP informed the Department that it believed the permit was no longer valid due
to three years of nonuse and missed water testing deadlines. Ex. 140, at 1-2 (citing
Thurston County Code (TCC) 20.54.040(4)(A); TCC 17.20.150(C)). FORP
acknowledged that the Port had engaged in some activities during those three years
but argued that none of those activities counted as use. According to FORP,those
activities did not count because the Port was operating outside of its geographical
region and outside the scope of its interlocal agreement with the Port of Olympia,
the governmental body that had geographical jurisdiction over the property. Id.
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
The Department dismissed FORP's claim as untimely. The Department
explained that it had already ruled the year before, in 2008, that the permit was valid
despite the missed testing deadlines and the long period ofinactivity. Exs. 141, 143.
Because FORP failed to challenge that decision within the time frame for such
appeals, the Department determined that FORP was time barred from doing so now.
After this legal challenge failed, FORP decided to put political pressure on the
mine instead. FORP informed the Port of Olympia Commission ofits beliefthat the
Port was acting outside the scope ofthe interlocal agreement between the two ports.
Olympia Port Commissioner George Earner Jr. agreed with FORP that the Port was
acting outside the scope of the interlocal agreement and shared his assessment with
the Board. Clerk's Papers(CP)at 255-56. FORP also met privately with the Board's
three commissioners to discuss the gravel mine. Exs. 98A,98B; CP at 2213.
Around the same time as these private meetings, one of the Board's
commissioners, Karen Valenzuela, indicated interest in evaluating whether the
permit could be revoked either because of the reasons raised by FORP or for some
other yet-to-be-identified reason. Ex. 114A. Valenzuela also advised Sharron
Coontz (FORP's president) about the evidence that she believed was needed to
persuade the Board's two other commissioners to agree to reexamine the validity of
the permit. Ex. 74.
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
As discussed in more detail in the five-year review section infra Section I.C,
the Board ultimately agreed with the Department that the issue of permit validity
was closed and could not be reopened by FORP. CP at 106-10.
B. Maytown's Journey To Extend the Permit's Water Testing Deadlines
and To Clarify the Scope of the Water Quality Monitoring
Requirements
Even though the Department had already ruled in 2008 that the gravel mining
permit had not lapsed entirely due to inactivity or missed water testing deadlines,
there was still the issue of how to address those missed deadlines.
When the permit was originally issued in 2005 to Citifor, that company had
planned to start mining immediately. As a result, the permit contained deadlines that
assumed an immediate start date. Specifically, condition 6A required field testing
of4 off-site supply wells "[p]rior to any mining activity and within one-year offinal
issuance of the [permit]," and condition 6C required the mine operator to collect
"water levels, temperature, and water quality, including measurement ofbackground
conditions" data from 17 wells '''within 60 days of the final issuance by the County
of the [permit]." Ex. 302(emphasis added). Because Citifor changed its mind and
decided not to pursue the mine soon after it received the permit, Citifor never
conducted that field testing and never collected that water quality data.
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Significant debate arose in 2009 about whether those two deadlines needed to
be formally extended and what water quality metrics and data collection points
needed to be monitored.
1. The Department Assured the Port That the Permit Was Valid and
That the Port Had Complied with All Water Quality Requirements
As discussed, the Port purchased the property from Citifor in 2006. The Port
purchased the property in partnership with the Port of Olympia for use as a rail-
served, intermodal logistics center (i.e., a freight transfer center)for the south Puget
Sound region. That meant the Port did not have immediate plans to mine the
property, so the Port did not conduct field testing or collect water quality data right
away.
But the Port's plan to use the property as a freight transfer center fell through.
In 2008,two years after purchasing the property, the Port sought to recoup its losses
by selling the property as a permitted gravel site. The Port prepared the property for
mining by removing 20 million tons of soil that was contaminated due to Citifor's
decades of artillery manufacturing and explosives testing on the property.
Additionally, the Port sought assurances from the Department that the permit
remained valid despite the missed water testing deadlines and lack of mining
activity.
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
The Department assured the Port that the permit remained valid. Ex. 85. But
the Department also informed the Port that no on-site activities could begin until the
Department received condition 6A and 6C's field testing water quality data. Id. The
Port immediately collected the data and submitted it to the Department the following
month. Upon receipt of that data, the Department confirmed that "all information
requested . . . has been submitted" and informed the Port that "[i]t is the property
owners' responsibility to ensure the property remains in compliance with all adopted
. . . conditions i.e. continual monitoring of the groundwater ... as required by the
[permit]." Ex. 83.
Based on the Department's express assurance that the permit was still valid
and its implicit approval to start mining, Maytown agreed to buy the property from
the Port. However, before the sale was completed, Maytown sought further
assurances from the Department that mining activities could commence quickly after
completion ofthe sale. Maytown presented testimony that Mike Kain,the County's
planning manager, verbally reassured it that the permit remained valid, that there
were no "skeletons in the closet," and that Maytown could conunence mining
activities within 30 to 60 days. 10 Verbatim Report ofProceedings(VRP)(June 27,
2014) at 2227. Kain disputes ever telling Maytown that mining activities could
commence immediately. Rather, Kain testified that he said the average lead time
Maytown Sand and Gravel, LLC v. Thiirston County, No. 94452-1
for the Department to process a request to proceed with mining would take
approximately 30 to 60 days. 15 VRP (July 8, 2014) at 3163.
That meeting between Kain and Maytown occurred in late October 2009,
around the same time that FORP (the environmental conservation group formed to
stop the mine) began meeting in earnest with the Board's three commissioners to
invalidate the permit.
2. After Nearly Two Years, the Department Suddenly Notified the
Port That a "Letter to Proceed" Was Required before Mining
Activities Could Commence
Shortly after the meeting between Maytown and Kain, the Department
informed the Port—for the first time in two years of communications about the
anticipated mine—^that the Port needed to obtain a "letter to proceed" from the
Department confirming that all permit conditions had been satisfied before any
mining activities could begin. Ex. 361. The Department further stated that once the
Port submitted a request for such a letter, "review will not be initiated" until FORP
had the opportunity to "outlin[e] their view of.. . compliance with conditions." Id.
The Department approximated that review of such a request to proceed would
"typically be 30 to 60 days." Id.
The Port questioned the sudden need for a letter to proceed, especially since
it already had a letter in 2008 that implied the Port had complied with all permit
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
conditions and was authorized to start mining. When the Port questioned the County
about the letter to proceed requirement, the County's attorney explained that the
requirement was authorized under TCC 17.20.160(A). CP at 1154. That ordinance,
however, requires only that gravel extraction miners "submit to either an inspection
or ... a conference before commencing the extraction of mineral resources." TCC
17.20.160(A). The ordinance does not mention anything about a written letter to
proceed requirement.
Although the Port remained skeptical about the need for a letter to proceed, it
nevertheless submitted a request for that letter two months later on January 4, 2010.
CP at 1204-34.
The Department denied the request on February 16, 2010. Ex. 382.
The Department explained that it could not issue a letter to proceed because
the Port had not complied with all permit conditions. Ex. 383. The Department
identified two main noncompliance issues. The first issue was the missed deadlines
for field testing and water data colleetion under conditions 6A and 6C. Those
deadlines, the Department explained, could be easily extended by amending the
permit. Because the "minor timeline change" did not "rise to the Hearing Examiner
level to attain compliance," it"may be approved by staff." Ex. 383, at 3-4; Ex. 382,
at 1. The second issue was the Port's allegedly deficient water data collection. Ex.
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
383. Back in 2008 when the Department first informed the Port that it needed to
perform water quality monitoring, the Port collected only 2 data points(water level
and temperature) from 14 wells. However, condition 6C expressly requires the
collection of4 data points("water level, temperature, water quality and background
conditions") from "77 {wellsy Id. at 3-4 (emphasis added). The Department
explained that a ''full baseline data set" consisting of 4 data metrics from 17 wells
was required before mining activities could commence. Id. at 4(emphasis added).
Additionally, the County's hydrogeologist recommended that the Port perform
additional, more comprehensive and costly, water testing of over 160 other
pollutants for at least one year before mining. Ex. 63.
The Port disagreed with the Department's findings of noncompliance and
refused to do any additional testing. Ex. 386. It appealed the findings and
recommendations to the Board. Id. The Port argued that the Department was
misreading condition 6C's data collection requirements to require more than was
intended. Id. The Port acknowledged that the express language of condition 6C
could be interpreted to include 4 data metrics from 17 wells but argued that that
interpretation produced impossible and costly monitoring requirements that have
nothing to do with any possible environmental impacts caused by gravel mining. Id.
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
Moreover, the Port argued, such additional testing could delay the mining project
for over a year due to Washington's rainy season. Id.
The Department explained that the additional comprehensive pollutant testing
was needed to test for historical pollutants deposited on the property by Citifor's
decades of artillery and ammunitions manufacturing and testing.
Whether the Port's or the Department's interpretation of the scope of
condition 6C's water quality monitoring requirements was correct was never
resolved because the Port withdrew its appeal to the Board a few months later on
July 1, 2010. Ex. 50. The Port withdrew the appeal because Maytown,the company
that was buying the property, had agreed under protest to collect the additional 2
data metrics from more wells (but not "17 wells") and agreed to conduct the
additional, comprehensive pollutant testing. Maytown agreed to do this additional
testing to allow mining to begin.
3. Even though Maytown Agreed to Comply with All of the
Department's Recommended Tests, the Department Still
Required Formal Amendment of the Permit and Hearing
Examiner Approval of the Formal Amendment before Mining
Could Commence
Like the Port, Maytown did not agree with the County's interpretation of the
scope of water quality testing required under the permit. Before Maytown
eventually agreed to comply with the County's interpretation, Maytown sought to
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
amend six permit conditions. Regarding conditions 6A and 6C's field and water
quality testing, Maytown sought to extend the missed deadlines, reduce the data
collection points from 4 to 2 data points, and clarify that the reference to 17 "wells"
in the permit was really shorthand for a combination of 17 underground wells and
aboveground stations. Ex. 59. In addition to amending conditions 6A and 6C,
Maytown sought to amend four other permit conditions relating to the construction
of a freeway turn pocket (condition 5), the installation of a noise berm (condition
15), the management of stormwater and erosion (conditions 23 H and I), and the
notice requirements to nearby well owners (condition V). Id. Maytown submitted
its proposed amendments to the Department on April 22, 2010.
Maytown claims that before submitting those six proposed amendments to the
Department, it had obtained reassurances from Kain at the Department that the
proposed amendments would be treated as minor adjustments and therefore would
be reviewed administratively by department staff without referral to a hearing
examiner for a quasi-judicial public hearing. 5 VRP (June 20, 2014) at 1354. Kain
acknowledged having that conversation with Maytown but testified that he said each
ofthose six amendments would probably qualify individually as minor amendments.
16 VRP (July 9,2014)at 3312-14. He denied ever saying that those six amendments
when proposed together, like Maytown did, would qualify as minor. Id.
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
The critical difference between treating an adjustment as minor rather than
major is that ground disturbing activities can begin once the Department approves a
minor adjustment, regardless of whether FORP or any other environmental group
appeals the adjustment. Appellant's Pet. for Review at 4. Conversely, if an
amendment is classified as a major adjustment, all ground disturbing activities must
be stayed until all appeals are resolved, which could—and in this case did—^result in
significant delay. Ex.55.
On June 17, 2010, two months after Maytown submitted its proposed
amendments,the Department informed Maytown that the six proposed amendments
were "substantial" and therefore needed to be referred to a hearing examiner. Id. at
1.
Maytown tried to expedite the amendment process by withdrawing piecemeal
most of its proposed amendments. As mentioned above, by July 1, 2010, Maytown
had agreed to comply with all ofthe Department's data collection requirements and
recommendations and had withdrawn every amendment except those related to
conditions 6A and 6C. Ex. 50. Maytown did not withdraw its proposed 6A and 6C
amendments because it was impossible for Maytown to comply with conditions 6A
and 6C as written. 4 VRP (June 19, 2014) at 1156-58. The deadlines for both
conditions had passed, and condition 6C's data collection requirements were
15
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
impossible to satisfy because they required collecting water data from a nonexistent
17th well.
Maytown's withdrawals and concessions occurred too late. By the time
Maytown made these concessions, the Board's attorney had already informed the
Department that the Board would no longer allow the Department to
administratively grant any adjustments to special use permits—^not even minor
adjustments. 16 VRP (July 9, 2014) at 3297-300. Kain, the County's planning
manager, testified that until that point he had been approving minor adjustments to
special use permits—like the one at issue here—for over 22 years. Id. at 3301-02.
Approval of Maytown's proposed amendments was further delayed by the
Department's determination that a limited SBPA' review was necessary before the
proposed amendments could be considered by the hearing examiner. Ex. 55. The
Department explained that because condition 6A and 6C were SEPA conditions, a
limited SEPA review was necessary to amend them. This limited review required
Maytown to submit a SEPA checklist. Id. Maytown's primary complaint with
having to undergo limited SEPA review is that it delayed approval of the proposed
amendments even more. Before the proposed amendments could be sent to the
State Environmental Policy Act, eh. 43.21C RCW.
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
hearing examiner for consideration, the Department had to issue SEPA findings.
The Department issued those SEPA findings on January 19, 2011—^nearly 5 months
after Maytown submitted its SEPA checklist and nearly 9 months after Maytown
initially submitted its request for amendments.^
Notably, Maytown's attorney agreed with the Department that a limited SEPA
review was probably required. He argued, instead, that any SEPA finding should
have been issued as an addendum rather than as a new threshold determination. Ex.
405. The critical difference between an addendum and a threshold determination is
that a threshold determination is subject to an open public comment period, whereas
an addendum is not. WAC 197-1 l-502(3)(b).
The Department issued a threshold determination of mitigated
nonsignificance on January 19, 2011. Ex. 446.
^ The County argues that this nine-month gap between Maytown's submission ofits
request for amendments and the Thurston County Community Planning Division's
decision was caused in part by Maytown's piecemeal withdrawal of some of its initial six
proposed amendments mid-notiee period, which required public notice each time.
Resp't/Cross-Appellants' Joint Resp. & Opening Br. at 19. Maytown partially withdrew
proposed amendments on July 1 and October 29, 2010. Ex. 446.
17
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
4. The Hearing Examiner Ruled That Formal Amendments Were
Necessary and That Limited SEPA Review Was Appropriate, but
Ruled That the Issuance of a SEPA Threshold Determination
Was Inappropriate
Both Maytown and FORP (the environmental conservation group opposed to
the mine) appealed different aspects ofthe Department's SEPA determinations. Id.
Maytown agreed with the Department's finding of no significant environmental
impact but argued that the finding should have been issued as an addendum, not a
threshold determination. Id. FORP disagreed with the finding and argued that a full
SEPA review, not a limited SEPA review, should have been conducted. Id. Thus,
three matters were before the hearing examiner in March 2011:(1) FORP's SEPA
appeal, (2) Maytown's SEPA appeal, and (3) Majhown's request to amend
conditions 6A and 6C.
The hearing examiner rejected FORP's SEPA appeal and agreed with
Maytown that a SEPA addendum (rather than a threshold finding) was the correct
SEPA procedure. Id. But she questioned whether she had the authority to resolve
that procedural dispute. Id. The hearing examiner also approved Maytown's
proposed amendments. Id.
But before granting Maytown's proposed amendments, the hearing examiner
addressed two other procedural complaints raised by Maytown:(1)that it should not
have been required to formally amend conditions 6A and 6C because the issue could
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
have been dealt with as a noncompliance matter at the five-year review (discussed
infra Section I.C) and (2) that even if it had to formally amend the conditions, the
proposed amendments should have been treated as minor adjustments that the
Department could grant administratively.
The hearing examiner disagreed with Maytown on these two procedural
points. She ruled that a formal amendment was required and that it was within the
Department's discretion to refer Maytown's proposed amendments to her given the
scope of the proposed changes to condition 6C's data collection requirements.^
^ Because the hearing examiner's ruling on these two procedural matters are central
to the County's LUPA administrative exhaustion argument and the parties disagree about
the scope of that ruling, we quote it fully:
1. A[][permit] amendment was required. Both [Maytown] and the Port
argue that the changes entailed in the instant proposal to amend SUPT-
02-0612 [(the gravel mining permit)] could have been handled
administratively via enforcement authority and that no amendment
application (administrative or quasi-judicial) was required. The
Department decided otherwise and its decision has several sources of
support. While there are no criteria for "special use amendment"
identified in the code, TCC 20.54.030 expressly authorizes the review
and approval of"amended special use authorizations." Pursuant to TCC
20.54.015(1), administrative review is allowed for a specified list of
special uses. Pursuant to TCC 20.54.015(2), the hearing examiner is the
approval authority for any special use not listed, and amended special use
authorizations are not included in subsection (1). SUPT-02-0612 itself,
at condition T, states that "any expansion or alteration" of the use would
require submittal of a new or amended special use permit. Permission to
mine was predicated on compliance with water monitoring conditions.
Changes in the number and nature of monitoring sites specified in the
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5. Only the Hearing Examiner's SEPA Rulings, Not Her
Procedural Rulings regarding the Amendment Process, Were
Appealed
FORP appealed the hearing examiner's refusal to order a full SEPA review to
the Board. CP at 411-13.
Maytown did not appeal because Maytown received what it really wanted:
amendments to conditions 6A and 6C. But Maytown did not appeal the hearing
conditions of permit approval, even if intended to increase consistency
with the 2005 Plan [(the groundwater management plan that was drafted
in conjunction with the permit)], are still "alterations" to the use as
approved. Condition T also reserves to the Department the discretion to
decide whether a given amendment requires administrative or quasi-
judicial review. At the Five Year Review hearing, the Applicant
characterized the proposed changes as "clerical" in nature. The County
Code is silent as to clerical corrections to conditions in issued permits.
Case law suggests that the County is bound by the permit as issued absent
further process. Chelan County v. Nykreim,[146] Wn.2d 904[, 52 P.3d
1](2002).
While it may arguably have been in accordance with County Code for the
Applicant's technical non-compliance with water monitoring deadlines to
be handled as an enforcement action [at the five-year review], changes to
the nature and number ofrequired monitoring sites fall less clearly within
the scope of enforcement. Because the County Code does not explicitly
state criteria establishing whether [permit] amendments are administrative
or quasi-judicial, the Department exercised discretion in deciding which
process applied. Its decision is due substantial deference because the
ordinance is unclear, the Department is charged with administration ofthe
ordinance, and the decision is within the Department's expertise. Bostain
V. FoodExp., Inc., 159 Wash. 2d 700, 716, 153 P.3d 846 (2007).
Ex. 446, at 30-31 (emphasis added).
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
examiner's arguably unfavorable rulings regarding the need for formal amendments
and limited SEPA review."^ As already discussed, though, Maytown mainly
complained about the Department's decision to refer the proposed water quality
amendments to the hearing examiner for review (rather than review them
administratively) and the Department's decision to issue a SEPA threshold finding
(rather than an addendum). On those points, the hearing examiner agreed with
Maytown that those actions were unnecessary, though the hearing examiner did say
^ Maytown's attomey explained the decision not to pursue the appeal as follows:
As we reviewed our options and the Examiner's Decision to outline the
appeal 1 emailed you about on Saturday, we reconsidered our position. The
way the Examiner wrote the Decision, she said the Code was unclear about
the process and the County had the option to address the 6A and 6C timing
issues either administratively or through the formal [permit] Amendment
process. Her language leaves open to us the argument that the County staff,
under pressure from FORP and the Commissioners, chose the most
burdensome and lengthy approach—^the formal[permit] Amendment process
and its attendant SEPA process that has taken so long and cost so much.
Remember that the record shows the County reversed itself on the process
which is further evidence of capricious acts. If we appeal this part of the
Examiner's Decision to the [Board], we know the [Board] will rule against
us and would likely use language that said the fonnal [permit] Amendment
process was REQUIRED. This would make our damage case more difficult
so we have concluded we should not file an appeal of the Examiner's
Decision.
Ex. 449.
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
that the Department acted within its discretionary authority when it referred the
proposed amendments to her.
Thus, the only issue administratively appealed to the Board was FORP's
challenge to the hearing examiner's decision against ordering a full SEPA review.
The Board rejected FORP's challenge. CP at 411-13. FORP then filed a LUPA
appeal in Thurston County Superior Court, which the superior court dismissed for
lack of standing on October 13, 2011. CP at 479-84.
The entire amendment and limited SEPA process, including FORP's SEPA
administrative and judicial appeals, took a year and a half. However, as mentioned
above, supra note 2, some of that delay may have been caused by Maytown's
withdrawal of proposed amendments midprocess, which required a new public
notice to be issued each time.
C. The Permit's Five-Year Review
While Maytown's request for amendments was pending, the permit became
due for a five-year review before the hearing examiner. That review took place on
December 6-8, 2010, and the hearing examiner issued her decision on December 30,
2010. Because no mining activities had ever taken place during the first five years
of the permit, the parties debated whether the laws of 2005 (the year the permit was
issued) or 2010(the current year) applied and what, if any, additional environmental
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
testing could be imposed on Maytown at this five-year juncture. The parties also
debated whether the hearing examiner had the authority to amend conditions 6A and
6C under its enforcement authority at this preamendment hearing stage given that
the remaining proposed amendments related to permit compliance matters.
FORP and other members of the public participated in the five-year review.
At the review hearing, FORP re-raised the arguments that it had raised in 2009 that
the permit had lapsed due to three years ofinactivity and due to missed water quality
monitoring deadlines.
1. The Hearing Examiner Did Not Address Whether She Had the
Authority To Modify Conditions 6A and 6C through Her
Enforcement Powers at the Five-Year Review
As detailed above, Maytown and the Port argued throughout the planning and
administrative process that there was no need to formally amend conditions 6A and
6C's missed deadlines or formally clarify the scope of 6C's data collection
requirements because the Port had already complied with the gist of those
conditions. The Department implicitly acknowledged as much in its 2008 letter.
Alternatively, Maytown and the Port argued that if formal amendments were
necessary, the amendments should be classified as minor adjustments that could be
administratively approved by the Department directly without referral to the hearing
examiner. At the five-year review, Maytown raised a second alternative argument:
23
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
that the hearing examiner could modify those conditions during the five-year review
through her permit enforcement powers rather than wait until the scheduled
amendment hearing, which had not yet occurred.
The hearing examiner seemed to agree with Maytown that she could treat the
water quality testing issue as a noncompliance matter and modify conditions 6A and
6C at the five-year review stage. Ex.429. But she did not actually rule on that point,
because Maytown and the County asked her not to do so. Id. They explained that
the public had already been notified that a separate hearing would be held on the
proposed amendments, so resolution of that issue at the five-year review could
trigger procedural due process complaints by others, thereby fueling even more
litigation by mine opponents.
Thus, no ruling on the amendment issue was made at the five-year review. As
mentioned above, supra Section I.B.4, the hearing examiner eventually approved
Maytown's proposed amendments three months later at the amendment hearing.
2. The Hearing Examiner Rejected FORP's Argument That the
Delay in Collecting Water Quality Data Invalidated the Permit
The hearing examiner disagreed with FORP's argument that the lack of water
quality testing in 2006 had fhistrated the purpose of the permit, thereby rendering
the permit invalid. The hearing examiner instead ruled that the delay was beneficial
to the project because the County now had a fresh baseline, closer in time to mining,
24
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
against which to compare future water samples. She explained that if Citifor or the
Port had collected water quality data in 2006, as the permit required, then that
information would have grown stale by 2010 and would not have been able to
provide the County with any useful baseline to assess ground and surface water
changes caused by gravel mining activities. Ex. 429.
3. The Hearing Examiner Rejected the Department's
Recommendation That a New Critical Areas Study Be Conducted
Most of the discussion at the five-year review focused on whether a new
critical areas study should be conducted given the five-year delay in mining activities
and, if so, which critical areas ordinance (CAO) should apply. When the gravel
permit was initially approved in 2005, it was evaluated under the County's 2002
CAO,^ which was the CAO applicable at the time. Since then, however,the County
had amended the CAO—in 2009. The relevant difference between the two
ordinances is that the 2009 CAO substantially expanded the definition of what land
qualifies as protected prairies and oak habitats. Id. Notably, if the 2009 CAO
applied, Maytown's permitted mine would be reduced in size by almost a third,from
284 acres to approximately 180 acres. Id.
^ Although the ordinance in effect in 2005 was adopted in 1999, well before the
2002 designation, we use that 2002 designation because all the parties refer to it as such.
25
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
The Department recommended that the hearing examiner order a new critical
areas survey under TCC 20.54.040(1). Exs. 14, 15. That provision requires
application ofcurrent law to "proposed" special use sites. The Department classified
Maytown's permitted-but-nonexistent mining operation as such a "proposed" use.
In contrast, Maytown argued that its mining operation was a "permitted" use,
which had vested under the 2002 CAO. TCC 17.15.355(A) provides that
"[ajuthorization to undertake regulated activities within critical areas or their buffers
shall normally he validfor a period of the underlying permit,'' which in this case
was 20 years. (Emphasis added.) The Department acknowledged that the 2009 CAO
usually would not apply to an existing permit but argued that this case was uniquely
different because no mining activities had ever occurred.
The hearing examiner agreed with Maytown that it was not required to redo
its critical areas study under the 2009 CAO. She ruled that the Department's
argument "lack[ed] common sense." Ex. 429, at 46. She explained that "[i]f
adopted, the County's position would have the same effect as requiring mines to re-
apply every five years. . . . The time and expense needed to acquire DNR
[(Department ofNatural Resources)] and DOE[(Department ofEcology)] approvals
argues against the County's position. No mining could ever occur under such a
26
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
paradigm because no operator could afford the costs ofreapplying every five years."
Id.
The hearing examiner also rejected the Department's alternative
recommendation that a new critical areas study be conducted under the 2002 CAO.
The Department explained that it was concerned that some critical habitats may have
been missed in 2005 when the permit was issued, or some may have developed in
the area since then. Id. In support of its recommendation for a new critical areas
study under the 2002 CAO,the Department cited a state forestry map that listed a
possible seasonal stream on the property. Ex. 14.
The hearing examiner concluded that "[t]he record contains no evidence" to
believe that any critical areas were missed during the 2005 critical areas study. Ex.
429, at 46. As for the possible seasonal stream, the hearing examiner relied on the
testimony from a habitat biologist from the Department ofFish and Wildlife saying
that he did not see any evidence of a seasonal stream during his site visit in October
2010. Id. at 28. Additionally, the hearing examiner relied on the 2005 SEPA
mitigated determination of nonsignificance (MDNS) findings that were entered
when the permit was originally issued. Those findings detailed the extensive
environmental studies that were conducted on the site from 2002 to 2005 when
Citifor initially proposed mining the property for gravel. Id. at 46. It was significant
27
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
to the hearing examiner that "[e]ven the conservation organizations supported the
October 2005 MDNS" and "submitt[ed] letters stating that [the MDNS] addressed
all their concerns about the . .. permit." Id. Moreover, the hearing examiner
explained that even if any critical areas had been missed in the 2005 critical areas
study, "the County and the Applicant [(Maytown)] [we]re equally bound by the
issued permit." Id.
FORP, along with BHAS, appealed the hearing examiner's rulings to the
Board. The Department did not appeal. The Board issued its decision two months
later on March 14, 2011. CP at 106-10.
4. The Board Reversed the Hearing Examiner and Ordered a New
Critical Areas Study Using the 2002 CAO
The Board rejected most of FORP's arguments, except one. Id. The Board
rejected FORP's argument that the permit had lapsed. Id. The Board also rejected
FORP's argument that the mining site was a"proposed" project and therefore subject
to the 2009 CAO(which was the Department's primary argument for recommending
a new critical areas study). Id. at 107. But the Board agreed with FORP (and the
Department's alternative argument for a new critical area study)that the mining site
should be reinspected for critical areas as defined under the 2002 CAO because there
was "undisputed" evidence that critical habitats had developed on the property since
the permit was issued. Id. The Board explained that reevaluation of critical areas
28
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
was authorized by the permit itself(rather than the TCC), which required that [t]he
existing native outwash prairie, wetlands,riparian areas(including streams), and oak
woodlands within the applicant's overall 1,613-acre ownership will be completely
avoided and buffered from the proposed activity.'" Id. at 107-08 (alteration in
original).
5. The Lewis County Superior Court Reversed the Board's Order
for a New Critical Areas Study
Maytown and the Port objected to conducting a new critical areas study. They
appealed the Board's decision to the Lewis County Superior Court. CP at 1-53. The
superior court agreed with Maytown and the Port and dismissed the Board's order
for a new critical areas study on July 20, 2011. CP at 111-16. The superior court
held that the Board's order requiring a full redo of the critical areas study was
arbitrary and capricious. CP at 2770.
Even though Maytown and the Port never had to conduct a new critical areas
study, the administrative process and judicial appeal took five months and resulted
in extra costs to Maytown and the Port in defending against the study at the five-
year review hearing and throughout the administrative and judicial appeals.
D. Majdown's and the Port's Tort Claims against the County
After waiting nearly two years, Maytown finally received a letter to proceed
from the Department on November 8, 2011. Ex. 1. Maytown began mining a few
29
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
months later, but the business venture failed not long thereafter. Because of the
terms of their property sale agreement, the Port retained a reversionary interest in
the property. The Port was unable to sell the property to any other mining company.
Maytown and the Port blamed the County for the mine's failure and lost
property value and filed complaints for damages in Lewis County Superior Court.
CP at 488-511 (Maytown), 163-86 (the Port). They argued that the nearly two-year
delay in mining operations and the significant costs they incurred during the
amendment process and five-year review were intentionally caused by the County.
They alleged that the Department was operating under the direction of the Board to
stop the mining project and that the Department complied with that direction by
imposing onerous water quality testing demands and dragging out the amendment
and five-year review processes.
Those efforts, they alleged, included(1)introducing a new "letter to proceed"
requirement suddenly in 2009,(2)refusing to process the Port's request for a letter
to proceed until after FORP had an opportunity to respond,(3)refusing to honor the
Department's 2008 determination that the Port had already complied with all water
quality testing requirements,(4)requiring Maytown to conduct extensive and costly
water quality testing beyond the four data collection points listed under condition
6C,(5) requiring Maytown to formally amend conditions 6A and 6C, rather than
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
address its technical noncompliance through enforcement powers,(6) refusing to
treat Maytown's proposed amendments as minor adjustments as the Department said
it would, and even though the only amendments left at the end were unopposed by
the Department, (7) issuing a SEPA threshold determination rather than an
addendum, which triggered more appeals,(8)recommending that Maytown undergo
a new, costly, and time-consuming critical areas study, which transformed what
should have been a short compliance hearing into a protracted three-day hearing,
and, lastly, (9) including language in the letter to proceed that Maytown finally
received almost two years later stating that the Department could impose additional
conditions on the permit at subsequent five-year reviews, which Maytown and the
Port contend was meant to scare prospective mining companies away from the
property.
Maytown and the Port alleged that together these actions resulted in
significant expenses, prevented Maytown from bidding on supply contracts because
it did not know when it would ever be able to start mining, delayed the start ofmining
to the point that the project was no longer economically feasible for Maytown's
owners, and cast such a dark cloud over the property that the property was virtually
unmarketable as anything other than an environmental conservation site. 13 VRP
(July 2, 2014)at 2659-61. They further claimed that the Department's actions were
31
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
done intentionally at the behest oftwo board commissioners, Valenzuela and Sandra
Romero, to stall and shut down Maytown's mining operation.
In support of these claims, Maytown's attorney, John Hempelmann, testified
that when he approached Kain (the County's planning manager) during the
amendment process to discuss the many procedural hurdles that the Department was
imposing on the mine, Kain admitted that all of these hurdles were put into place at
the direction of the Board. Those hurdles included requiring a letter to proceed and
delaying review ofthat request so that FORP could review it, 6 VRP(June 23,2014)
at 1499; classifying Maytown's proposed amendments as major rather than minor
adjustments, 4 VRP (June 19, 2014) at 1145-46; and recommending that Maytown
redo the critical areas study, 5 VRP (June 20, 2014) at 1269. According to
Hempelmann, the County's attorney (distinct from the Board's attorney) told him
that both he and Kain were at risk of losing their jobs because they had tried to help
the mining project proceed despite the commissioners' directives to stop the project.
4 VRP (June 19, 2014) at 1189.
Indeed, the Port's director testified that he was shocked by Commissioner
Valenzuela's blatant desire to stop the mine. He testified that he was present during
a board meeting where the mine was discussed. During that meeting,the Department
informed the Board that the permitted mine could not be stopped unless there was
32
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
an emergency, such as evidence of an endangered butterfly species on the property.
2 VRP (June 17, 2014) at 801; 3 VRP (June 18, 2014) at 893. In response to that
information, the director testified that he heard Valenzuela tell the Department to go
'"find [her] an emergency.'" 3 VRP (June 18, 2014)at 893-94.
The County's manager. Jack Hedge, also observed that Commissioner
Valenzuela had figuratively leaped at the possibility of being able to close the mine
when she learned there might be a seasonal stream on the property. He testified that
when he met with Valenzuela to discuss FORP's allegation of a seasonal stream, she
had a "visceral" response to the allegation and pronounced the allegation as the
evidence she needed to require the entire project to be reevaluated under SEPA. 15
VRP (July 8, 2014) at 3067-70. Valenzuela did not, however, seek to unilaterally
reopen SEPA based on that allegation because the county manager informed her that
he knew for a fact that there was no seasonal stream on the property. Id. at 3068-70.
Notably, however,the Department raised the possibility of a seasonal stream on the
property as a basis for redoing a SEPA review at the five-year review. Whether that
basis was merely coincidental or raised at Valenzuela's request was a question of
fact for the jury to decide.
Commissioner Valenzuela admitted at trial that she wanted to reopen SEPA
review. 8 VRP (June 25 2014)at 1849-50. She also acknowledged that she wanted
33
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
the mining project to be classified as a "proposed," rather than a "permitted," use so
that the 2009 CAO could be applied, id. at 1731. She acknowledged that she wanted
to use the 2009 CAO even though she knew the ordinance could not be applied
retroactively to permitted projects, id. at 1734-35; knew that the cost ofa new critical
areas study would be borne by Maytown and the Port; and knew that the study would
probably result in approximately a 40 percent reduction in mineable property, id. at
1736-37. An e-mail that Valenzuela sent to a local resident also suggested that she
was not against using the "letter to proceed" process to stall the mine. Ex. 60.
Meanwhile, at the same time the Department was evaluating Maytown's
proposed amendments. Commissioner Romero directed staff to "[pjlease find out
why staff does not agree with the FORP's attorney" since "[tjhis may be key to the
whole project." Ex. 47.
Additional evidence showed that neither Valenzuela nor Romero disclosed to
the Port or to Maytown that they had signed FORP's 2007 petition to rezone the
mine. Ex. 91; 8 VRP (June 25, 2014) at 1865. Both Valenzuela and Romero also
presided over the appeals in this case without disclosing their membership in BHAS,
the environmental conservation group that originally contested the mine when it was
proposed in 2002 through 2005 and that joined FORP in many of its appeals and
motions in this case. 8 VRP (June 25, 2014) at 1701, 1788-89,1884-85. According
34
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
to Valenzuela, it was "meaningful to [her] that BHAS [was] objecting to the
requested amendments, since they [were a] party to the settlement agreement"
reached in 2005 that gave rise to conditions 6A and 6C. Ex. 31, at 2. Whether this
statement proved Valenzuela was biased in favor ofBHAS and against the mine was
also a question offact for the jury to decide.
E. The County's Motions for Summary Judgment and the Jury's
Verdict
Thurston County moved for summary judgment dismissal several times
throughout the case. The County argued that the case should be dismissed because
Maytown and the Port had failed to exhaust their administrative remedies. CP at
222-23, 1381-1410, 1807-16, 1926-36. Additionally, the County argued that
Maytown's Section 1983 due process claim should be dismissed because Maytown
failed to prove that it was deprived of a constitutionally protected property interest
or that the County had acted in a way that unconstitutionally "shocks the
conscience." CP at 206-10, 1398-1401. The trial court disagreed and submitted the
case to the jury. CP at 1950-53, 3050-56; 14 VRP (July 7, 2014) at 2882-83.
The jury ruled in favor of Maytown and the Port on all of their claims. The
jury found that the County had (1)tortiously interfered with the real estate contract
between the Port and Maytown,(2) tortiously interfered with Maytown's business
expectancy,(3) made negligent misrepresentations to both the Port and Maytown,
35
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
(4) made express assurances to both the Port and Maytown giving rise to a special
duty to both, and(5) violated Maytown's substantive due process rights in violation
of Section 1983. CP at 6388-91. The jury further found that each of these actions
caused damages and awarded a lump sum of$8 million to the Port and $4 million to
Maytown. CP at 6391.^ The award did not include the prelitigation attorney fees
Maytown and the Port incurred trying to perfect the permit in the administrative fora.
CP at 3622-24. But the trial court did award Maytown $1.1 million in litigation
attorney fees for prevailing on its Section 1983 claim. CP at 7551-62.
The trial court reduced the jury verdicts to judgment. CP at 6392-94. The
County then moved for judgment as a matter oflaw and a new trial, CP at 6399-422,
which the trial court denied, CP at 7448-49.
F. The Court of Appeals Affirmed the Jury Verdicts and Remanded the
Case for a Damages Trial on Prelitigation, Administrative Fora
Attorney Fees
The County appealed from the judgment and the trial court's denial of its
postjudgment motion. CP at 7469-79. In its opening brief,the County also assigned
® Additionally,the trial court ruled that the County acted arbitrarily and capriciously
in violation ofROW 64.40.020 in ordering Maytown to conduct a new critical areas study.
CP at 2770. But no damages were awarded to Maytown for that claim because the parties
agreed that those damages would duplicate damages awarded for other claims. Appellant's
Opening Br. at 43.
36
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
error to the trial court's denial ofits earlier summaryjudgment motions, arguing that
the trial court should have dismissed the entire case because Maytown and the Port
failed to exhaust the administrative process and because there was no evidence to
support Maytown's Section 1983 claim.
Maytown and the Port cross appealed the trial court's exclusion of
prelitigation, administrative fora attorney fees as damages. CP at 7482-95.
The Court of Appeals rejected the County's claim that LUPA's administrative
exhaustion requirements applied to this tort action and found that Maytown had
presented sufficient evidence to support its Section 1983 claim. Maytown Sand &
Gravel, LLC v. Thurston County, 198 Wash. App. 560, 566-67, 395 P.3d 149 (2017).
Regarding Maytown and the Port's request for prelitigation, administrative fora
attorney fees, the Court of Appeals agreed that these fees were recoverable as
damages and remanded the case for a trial on the amount of those fees. Id. at 567.
The Court of Appeals also granted Maytown appellate fees and costs under RAP
18.1 and 42 U.S.C. § 1988 for prevailing on its Section 1983 claim. Id. at 592-93.
The County petitioned for review. We granted review without limitation.
Maytown Sand & Gravel, LLC v. Thurston County, 189 Wash. 2d 1015, 404 P.3d 480
(2017).
37
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
11. Issues
A. Whether LUPA's administrative exhaustion rule, RCW 36.70C.030,
applies to all tort claims that arise during the land use decision-
making process;
B. Whether there was sufficient evidence to support the jury's finding
ofa substantive due process violation under Section 1983(42 U.S.C.
§ 1983);
C. Whether an aggrieved party may claim prelitigation, administrative
fora attorney fees that the tortfeasor intentionally caused as damages
in a tortious interference claim; and
D. Whether a request under RAP 18.1(b) for appellate attorney fees
under 42 U.S.C. § 1988 must be made in a separate section devoted
solely to that request.
III. Analysis
A. LUPA's Administrative Exhaustion Requirement Does Not Bar All
Tort Claims That Arise during the Land Use Decision-Making
Process
A party challenging a local land use decision must exhaust local
administrative processes before seeking review in the courts. RCW 36.70C.030.
That rule is subject to four exceptions. One of those exceptions is for "[cjlaims
provided by any law for monetary damages or compensation." RCW
36.70C.030(l)(c); e.g.,Lakey v. PugetSound Energy, Inc., 176 Wn.2d 909,928,296
P.3d 860(2013)(holding LUPA's exhaustion requirement does not apply to inverse
condemnation claims for compensation).
38
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
The County acknowledges that because Maytown and the Port seek only
monetary damages in this case, their action arguably falls within the language of
LUPA's damages exception. Appellant's Opening Br. at 54-56; Pet'r's Suppl. Br.
at 8-11. The County, however, argues against construing that language so broadly
as to allow parties, like Maytown and the Port,to circumvent LUPA's administrative
exhaustion requirement simply by seeking damages. To allow a party to do so, the
County argues, would create a loophole that completely undermines LUPA's
statutory framework.
Maytown and the Port argue that we do not need to address the scope of
LUPA's damages exception because they are not challenging a land use decision.
They argue that LUPA's exhaustion requirement applies only to actions challenging
the validity of a permit or the interpretation of a land use statute or ordinance.^ They
argue that a different rule applies where, as here,the plaintiffs challenge an agency's
tortious acts committed during the land use permitting process, rather than the land
^ E.g., Durland v. San Juan County, 182 Wash. 2d 55, 64-66, 340 P.3d 191 (2014)
(dismissing a challenge to invalidate a building permit); Habitat Watch v. Skagit County,
155 Wash. 2d 397, 407, 120 P.3d 56 (2005)(dismissing a challenge to invalidate a land use
deadline extension); Chelan County v. Nykreim, 146 Wash. 2d 904, 939-40, 52 P.3d 1 (2002)
(dismissing a challenge to invalidate a boundary line adjustment); Wenatchee Sportsmen
Ass'n V. Chelan County, 141 Wn.2d 169,172-73,4 P.3d 123(2000)(dismissing a challenge
to invalidate a rezone decision); ApplewoodEstates Homeowners Ass'n v. City ofRichland,
166 Wash. App. 161, 170-71, 269 P.3d 388 (2012)(dismissing a challenge to invalidate a
land use permit amendment).
39
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
use decision itself. See Westmark Dev. Corp. v. City ofBurien, 140 Wash. App. 540,
556, 166 P.3d 813 (2007)(distinguishing between actions challenging the validity
of a land use decision and actions challenging the government's bad faith delay in
issuing that decision).
We review this statutory interpretation issue de novo. Post v. City ofTacoma,
\61 Wn.2d 300, 308,217 P.3d 1179(2009)(citing In re Pers. Restraint ofCruz, 157
Wash. 2d 83, 87, 134 P.3d 1166 (2006)). We agree with Maytown and the Port.
LUPA's administrative exhaustion requirement applies to judicial review of
"land use decisions." RCW 36.70C.020(1). A "land use decision" is defined as "a
final determination by a local jurisdiction's body or officer with the highest level of
authority to make the determination." RCW 36.70C.020(2) (emphasis added).
Although the term "determination" is not statutorily defined, the legislature has
provided an illustrative list ofactions that could trigger such a"determination." That
list includes(a)"[a]n application for project permits or other governmental approval
required by law before real property may be improved, developed, modified, sold,
transferred or used," (b) "[a]n interpretative or declaratory decision regarding the
application to a specific property of zoning or other ordinances or rules regulating
the improvement, development, modification, maintenance, or use ofreal property,"
or (c) "[t]he enforcement by a local jurisdiction of ordinances regulating the
40
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
improvement, development, modification, maintenance, or use of real property."
RCW 36.70C.020(2)(a)-(c).
Where the legislature uses a general statutory term but provides a list of
illustrative examples, we construe the term narrowly, consistent with those
examples. Stated differently, '"general terms, when used in conjunction with
specific terms in a statute, should be deemed only to incorporate those things similar
in nature or "comparable to" the specific terms.'" State v. Larson, 184 Wash. 2d 843,
849,365 P.3d 740(2015){qyoting Simpson Inv. Co. v. Dep't ofRevenue, 141 Wn.2d
139,151,3 P.3d741 (2000){quoting John H. Sellen Constr. Co. v. Dep't ofRevenue,
87 Wash. 2d 878, 883-84, 558 P.3d 1342(1976))).
Applying that principle of statutory construction, we conclude that the term
"determination" does not include tortious acts. Tortious acts committed during the
land use decision-making process are not similar or comparable to determinations
on a permit application, on the applicability ofland use ordinances or regulations to
property, or on how ordinances and regulations should be enforced. Construing
"determination" in this limited manner is also consistent with LUPA's stated
purpose, which is to provide landowners with an expedited and uniform process for
41
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
obtaining and appealing local land use decisions.® RCW 36.70C.010; Wash. State
Office of Fin. Mgmt.,Governor's Task Force on Regulatory Reform: Final
Report 51 (Dec. 20, 1994). That rationale does not apply to intentional torts
committed during that land use decision-making process.
We therefore hold that LUPA's administrative exhaustion requirement does
not apply to the tort claims raised here. Accord Woods View II, LLC v. Kitsap
® Maytown speculates that the legislature may have enacted LUPA in response to
this court's decision inLiitheran Day Care v. Snohomish County, 119 Wash. 2d 91, 829 P.2d
746 (1992). Answer to Mem. of Amicus Wash. State Ass'n of Mun. Att'ys in Supp. of
Pet. for Review at 3. Maytown contends that LUPA was adopted to reverse the holding in
Lutheran Day Care, which Maytown characterizes as having transformed every land use
appeal into a full-blown liability action. Id. Lutheran Day Care held that when a court
overturns or upholds a local land use decision under the old pre-LUPA writ of certiorari
process, that court's decision had preclusive effect on all subsequent claims for damages.
119 Wash. 2d at 116-17. As a result, Maytown argues, the writ process became extremely
litigious because the process proved or foreclosed subsequent claims for damages.
We can find no evidence that the legislature adopted LUPA with the intent to reverse
Lutheran Day Care and abolish any preclusive effect administrative land use decisions
could have on subsequent actions. And Maytown has not provided us with any. Our
research shows that LUPA was enacted in 1995 at the behest of then-Governor Mike
Lowry. Governor Lowry identified a need for regulatory reform in land use decisions and
created a task force to develop recommendations for such reform. Exec. Order No. 93-06
(Wash. Aug. 9, 1993), https://www.govemor.wa.gov/sites/default/files/exe_order/eo_93-
06.pdf[https://perma.cc/D7F5-NHLB]. In its report, the task force identified a complex
and highly specialized legal landscape that required aggrieved parties to dispute a single
land use decision before the administrative board and the courts simultaneously with
different periods for filing an appeal. WASH. STATE OFFICE OF FiN. Mgmt.,GOVERNOR'S
Task Force on Regulatory Reform:Final Report 51, App. A at 17(Dec. 20,1994).
In order to provide more consistent, predictable, and timely review, the task force
recommended a simplified superior court process and a uniform period for appeal. Id.
Those recommendations were mostly adopted by the legislature.
42
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
County, 188 Wash. App. 1, 24-25, 352 P.3d 807(2015)(holding LUPA's exhaustion
requirement does not bar tort claims arising from improper governmental delay in
processing permits); Libera v. City ofPort Angeles, 178 Wn. App. 669,675 n.6, 316
P.3d 1064(2013)(holding the same rule applies to a tort claim alleging intentional
interference with a business expectancy).
Our holding in this case that LUPA does not absolutely bar all tort claims that
arise during the land use decision-making process does not necessarily mean that a
hearing examiner's interpretation and application ofland use statutes and ordinances
will never have any preclusive effect on subsequent tort claims. That issue is not
presently before us. Contrary to the County's assertion, neither Maytown nor the
Port has challenged any ofthe hearing examiner's land use determinations. Indeed,
Maytown and the Port relied on the hearing examiner's determination that it was up
to the County's ''discretion" whether to send Maytown's proposed amendments to
her for review to support their claim that the County was not required to send the
amendments to her. Resp't/Cross-Appellant's Joint Resp. & Opening Br. at 58
(emphasis added)(explaining that"even though the [h]earing [ejxaminer determined
. . . that County staff had the discretion to require a hearing examiner amendment
process, that determination says nothing about whether the County exercised its
discretion for an improper purpose . . . ."). Although they did disagree with the
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
hearing examiner's conclusion that they were required to formally amend conditions
6A and 6C, the crux of their complaint was not about the need for amendments but,
rather, about the need to send the proposed amendments to the hearing examiner for
review and the need to issue a threshold determination that subjected the proposed
amendments to an open public comment period and further appeals.
B. Maytown's Section 1983 Civil Rights Claim Was Supported by Sufficient
Evidence
The Civil Rights Act, 42 U.S.C. § 1983, establishes a private cause of action
for the deprivation of constitutional rights under color of state law. It is well
established that acts occurring during the land use decision-making process can form
the basis for Section 1983 claims. E.g., City of Monterey v. Del Monte Dunes at
Monterey, Ltd., 526 U.S. 687, 119 S. Ct. 1624, 143 L. Ed. 2d 882(1999)(partial
plurality). Such Section 1983 land use claims typically allege either an
unconstitutional taking or a substantive due process violation. Here, Maytown
alleged a substantive due process violation.
The jury was instructed that a "Substantive Due Process Clause violation
occurs when [the] government takes action against a person that is not rationally
related to a legitimate government purpose." CP at 6376. It was also instructed that
establishing such a violation "requires proofthat PlaintiffMaytown Sand and Gravel
was deprived of rights in a way that shocks the conscience or interferes with rights
44
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
that are implicit in the concept of ordered liberty." Id. The jury found in favor of
Maytown on its Section 1983 claim. CP at 6390-91.
The County argues that we should reverse the jury verdict due to insufficient
evidence. Specifically, the County argues that Maytown failed to prove that (1) it
was deprived of a legally protected property right and(2)the County acted in a way
that "shocks the conscience."
When reviewing a jury verdict for sufficient evidence, the court"must accept
the truth of the nonmoving party's evidence and draw all favorable inferences that
may reasonably be evinced." Lockwood v. AC&S, Inc., 109 Wash. 2d 235, 243, 744
P.2d 605 (1987)(citing Levy v. N. Am. Co.for Life & Health Ins., 90 Wash. 2d 846,
851, 586 P.2d 845 (1978)). The jury's verdict will be upheld "[i]f there is any
justifiable evidence upon which reasonable minds might reach conclusions that
sustain the verdict. . . ." Levy, 90 Wash. 2d at 851. We hold that there was sufficient
evidence to support the jury's Section 1983 verdict.
1. There Was Sufficient Evidence To Prove the County Deprived
Maytown ofa Constitutionally Protected Property Right
"'Property' under the Fourteenth Amendment encompasses more than
tangible physical property." Durland v. San Juan County, 182 Wash. 2d 55, 70, 340
P.3d 191 (2014)(citing U.S. CONST, amend. XIV;Logan v. Zimmerman Brush Co.,
455 U.S. 422, 430, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982)). "Protected property
45
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
interests include all benefits to which there is a '"legitimate claim of entitlement".'"
Id. (quoting Canard v. Univ. of Wash, 119 Wash. 2d 519, 529, 834 P.2d 17 (1992)
(quoting 5(i. ofRegents ofState Colls, v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701,
33 L. Ed. 2d 548 (1972))). It necessarily follows that a permit to mine constitutes a
protected property interest.
At trial, Maytown claimed that it had a vested right (and hence a protected
property interest) in mining its property based on the 2005 permit and the County's
many assurances from 2008 to 2010 that the permit was valid and that the expired
water quality testing deadlines would be extended. The County acknowledged that
Maytown had a valid permit to mine. But it claimed that that right to mine was
conditioned on Maytown obtaining an extension ofthe permit's water quality testing
deadlines. The County argued that Maytown had no property interest in its permit
until that condition was satisfied. According to the County, unless and until that
occurred, Maytown had no greater property interest in its permit than a land use
applicant has in a requested permit.
But a requested permit does give rise to a cognizable property interest"when
there are articulable standards that constrain the decision-making process." Id. at 71
(citing Wedges/Ledges of Cal, Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir.
1994)). In other words, a requested permit constitutes a constitutionally protected
46
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
property interest "if discretion [to deny the final issuance of the permit] is
substantially limited." Id. (citing Braswell v. Shoreline Fire Dep't, 622 F.3d 1099
(9th Cir. 2010)). The County concludes that this rule does not apply because
Maytown was not entitled to the requested extension ofconditions 6A and 6C. Thus,
according to the County, Maytown had no property right in its permit and no right
to mine.
We agree with the County that because the permit contained expired
premining conditions that had not been satisfied by those deadlines, the permit by
itself was not enough to prove a constitutionally protected interest to mine.
But Maytown did not rely solely on the permit to establish its entitlement to
mine. Maytown also relied on two letters from the County. The first letter informed
the Port that the permit remained valid, despite the missed water testing deadlines.
Ex. 85; CP at 1120. That letter stated, "[T]he Thurston County Development
Services Department hereby considers the activities initiated to date to be sufficient
to forestall expiration of the subject Special Use Permit at this time. . . . consistent
with TCC 20.54.040(4)(a)." Id. Although this first letter also said that mining
activities could not start "until the groundwater monitoring survey reports
(Condition 6.C 10/24/05 MDNS).. . have been submitted," a second letter said that
that premining groundwater report condition had been satisfied. Id. Indeed, the
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
second letter confirmed that "all information requested" in the first letter had been
received and explained that it was the Port's "responsibility to ensure the property
remains in compliance with all adopted [h]earing [e]xaminer conditions ... as
required by the [permit]." Ex. 83 (emphasis added).
Those two letters could be interpreted either broadly, as an agency
determination that the Port had complied with all of the permit's premining
conditions (as Maytown argued), or narrowly, as mere confirmation of receipt of
paper work(as the County argued). But we must view the evidence in the light most
supportive of the jury's verdict. Street v. Weyerhaeuser Co., 189 Wash. 2d 187, 206-
07,399 P.3d 1156(2017). Those letters, when viewed in the light most favorable to
the jury verdict for Maytown, constitute sufficient evidence that Maytown had a
protected property right to mine as of2008 when the Department determined that all
premining conditions had been satisfied.
2. Under Controlling Supreme Court Precedent, the Evidence Was
Sufficient To Prove That the County's Acts "Shocked the
Conscience"
The County argues that even ifMaytown had a constitutionally protected right
to mine, it still did not prove a Section 1983 due process violation. According to the
County, a due process violation requires governmental action that "shocks the
conscience," which the County defines as governmental action lacking any
48
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
legitimate governmental purpose. Appellant's Consolidated Reply & Resp. Br. at
37-38. The County argues that this standard requires more than just arbitrary and
capricious acts, id. at 36; instead, the "official conduct'must amount to an "abuse of
power" lacking any "reasonable justification in the service of a legitimate
governmental objective,'" id. at 38 (quoting Shanks v. Dressel, 540 F.3d 1082,
1088-89(9th Cir. 2008)(quoting County ofSacramento v. Lewis,523 U.S. 833,846,
118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998))). This standard, the County contends,
requires evidence of corruption, bribery, or self-dealing. Pet'r's Suppl. Br. at 16-18.
Essentially, the County argues that Washington's Section 1983 case law is out
of step with contemporary United States Supreme Court precedent and decisions
from the federal circuit courts, particularly Lewis,523 U.S. 833(adopting the federal
"shocks the conscience" standard); Onyx Properties LLC v. Board of County
Commissioners, 838 F.3d 1039, 1049 (10th Cir. 2016) (requiring more than
"[ijntentionally or recklessly causing injury through the abuse or misuse of
governmental power"), cert, denied, 137 S. Ct. 1815 (2017); and United Artists
Theatre Circuit, Inc. v. Township of Warrington, 316 F.3d 392, 400-02 (3d Cir.
2003)(rejecting "improper motive" as too low ofa standard because it would elevate
all land use appeals to constitutional challenges since every disappointed developer
complains of abuse of authority).
49
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
We reject the suggestion that Washington's Section 1983 case law is out of
sync with the United States Supreme Court's decision in Lewis. In fact, Majdown's
Section 1983 claim is highly analogous to the Section 1983 claim raised in Del
Monte Dunes, 526 U.S. 687, decided one year after Lewis.
Like Majdown, Del Monte Dunes filed a Section 1983 due process^ claim,
arguing that a local land use agency had deprived it of economic use of its property
and that the agency's actions were motivated by improper environmental and
political concerns. Del Monte Dunes applied for a permit to develop 37.6 acres for
new residential housing. Del Monte Dunes originally proposed building only 344
units, even though local zoning laws permitted up to 1,000 units. Id. at 695-96. The
city denied the application but said it would accept a reduced proposal of 264 units.
Id. at 696. But when Del Monte Dunes submitted an application for 264 units, that
application was also denied. This time the city said it would approve 224 units. Id.
But it turned out the city did not mean that either. When Del Monte Dunes reduced
^ We refer to the Del Monte Dunes case as a substantive due process case, even
though the case actually involved a regulatory takings issue, because the United States
Supreme Court treated the case as a substantive due process case and applied the rules
goveming substantive due proeess deprivations, not regulatory takings. We know this
beeause the Court analyzed the claim using the "substantially advances" test, which is
reserved for substantive due proeess claims. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528,
540, 125 S. Ct. 2074, 161 L. Ed. 2d 876(2005). By contrast, regulatory takings ehallenges
are govemed mostly by the multifactor analysis ofPenn Central Transportation Co. v. New
York City, 438 U.S. 104, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978). Lingle, 544 U.S. at 538-
39.
50
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
the size of its development a second time to 224 units, the city denied that
application. Id. Del Monte Dunes appealed that denial to the city council, and the
city council directed the city to consider 190 units instead. Id. But Del Monte
Dunes' proposal for 190 units was also denied. Id. So, Del Monte Dunes appealed
again to the city council. At this second appeal, the city council approved the plan,
subject to a few conditions. Id. Even though Del Monte Dunes' development plans
did not comply with all of the council's conditions, the city's architectural review
committee nevertheless recommended that the plans be approved. Id. at 697. The
city disagreed with the committee's recommendations and denied the plans. Del
Monte Dunes appealed that decision to the city council. On Del Monte Dunes' third
appeal, the council affirmed the city's denial. Id. The city council did not provide
any explanation for upholding that denial and refused to extend the deadlines on the
existing conditional permit so Del Monte Dunes could revise its plans. Thus, after
five years of back and forth with the city, Del Monte Dunes was back to square one,
or possibly worse because a sewer moratorium issued by another agency that was
critical to the proposed housing development was expiring soon. Id. The United
States Supreme Court upheld the trial court's decision to send Del Monte Dunes'
Section 1983 claim to the jury, even though there was no evidence of corruption,
bribery, or self-dealing. Id. at 694,697-98.
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
Following Del Monte Dunes, the evidence in this case is also sufficient to
support a Section 1983 claim.
5. The County Is Also Barredfrom Claiming That Maytown Was
Required To Prove the County's Acts "Shocked the Conscience"
Because the Jury Instructions That It Requested and Obtained
Stated a Different Standard
Another problem with the County's Section 1983 argument is that it is
inconsistent with the jury instructions that the County requested and obtained in this
case. The trial court instructed the jury that a due process violation can be proved by
showing "[Maytown] was deprived of rights in a way that shocks the conscience or
interferes with rights that are implicit in the concept ofordered liberty." CP at
6376-77 (jury instruction 24)(emphasis added). This means that the jury could
have predicated its finding of a due process violation on actions that either shocked
the conscience or interfered with ordered liberty.
The right to an impartial decision-maker is clearly a right "implicit in the
concept of ordered liberty." The evidence, when viewed in the light most favorable
to the jury verdict, establishes that two of the County's board commissioners
deliberately interfered with the impartiality of the Department's decision-making
The County does not ehallenge the jury instruction. Pet'r's Suppl. Br. at 15("The
jury was correctly instructed ... ."). That is probably because the County itself requested
that instruction. CP at 6104-05.
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
process. For this additional reason,the record contains sufficient evidence to support
the jury finding of a due process violation.
C. The American Rule Bars Maytown and the Port from Recovering
Prelitigation, Administrative Fora Attorney Fees under a Tortious
Interference Claim
The trial court barred Maytown and the Port from "introduc[ing] evidence or
argument seeking recovery of attorneys' fees and litigation expenses as damages" at
trial. CP at 3622-24. The trial court explained its evidentiary ruling was based on
the American rule. VRP (June 12, 2014)(Pretrial hearing) at 547-48.
The American rule requires each party to bear its own litigation costs and fees.
King County v. Vinci Constr. Grands Projects/Parsons RCI/Frontier-Kemper, JV,
188 Wn.2d 618,625, 398 P.3d 1093(2017){ddingDayton v. Farmers Ins. Grp., 124
Wash. 2d 277, 280, 876 P.2d 896 (1994)). The primary justification for adopting the
American rule is that it encourages aggrieved parties to air their grievances in court.
"[Sjince litigation is at best uncertain[,] one should not be penalized for merely
defending or prosecuting a lawsuit, and ... the poor might be unjustly discouraged
from instituting actions to vindicate their rights ifthe penalty for losing included the
fees of their opponents' counsel." Fleischmann Distilling Corp. v. Maier Brewing
Co., 386 U.S. 714, 718, 87 S. Ct. 1404, 18 L. Ed. 2d 475 (1967).
53
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
The American rule therefore bars courts from awarding attorney fees as costs,
subject to certain statutory, contractual, and equitable exceptions. Maytown and the
Port argue that the American rule does not apply here because they are seeking
recovery of prelitigation, administrative fora attorney fees as damages, not costs.
Alternatively, they argue that they are entitled to recover these fees under the bad
faith exception to the American rule."
We review the trial judge's evidentiary rulings for abuse of discretion. Univ.
of Wash. Med. Ctr. v. Dep't ofHealth, 164 Wash. 2d 95, 104, 187 P.3d 243 (2008)
(citing State v. Myers, 133 Wash. 2d 26, 34, 941 P.2d 1102 (1997)). However the
question of whether a party is entitled to an award of attorney fees is reviewed de
novo. Durland, 182 Wash. 2d at 76 (citing Newport Yacht Basin Ass'n of Condo.
Owners v. Supreme Nw.,Inc., 168 Wash. App. 86, 285 P.3d 70(2012)). We hold that
the American rule generally bars recovery of such prelitigation, administrative fora
attorney fees and that Maytown and the Port have failed to prove any of the
exceptions to that general rule apply.
Maytown and the Port also argued before the trial court that the ABC exception
applied. CP at 7502-05. Maytown and the Port appear to have abandoned that claim on
appeal and for good reason. The County did not expose Maytown or the Port to litigation
with others so the rule does not apply. See LK Operating, LLC v. Collection Grp., LLC,
181 Wash. 2d 117, 123, 330 P.3d 190(2014)(discussing the ABC exception).
54
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
1. Washington's American Rule Bars Recovery of Prelitgation,
Administrative Fora Attorney Fees as Damages Except in a
Narrow Set ofCircumstances Not Applicable Here
Although "the traditional American rule relates to attorney fees as costs, at
least two of the recognized equitable exceptions award attorney fees as damages.^
City of Seattle v. McCready, 131 Wash. 2d 266, 275, 931 P.2d 156 (1997) (listing
example cases). Thus, the "more accurate statement of Washington's American
rule" is that "attorney fees are not available as costs or damages absent a contract,
statute, or recognized ground in equity." Id.
Maytown and the Port argue that they should have been allowed to present
evidence of prelitigation, administrative fora attorney fees as damages because they
would not have incurred those fees but for the County's deliberate abusive use ofthe
administrative process. They argue this type of intentional, deliberate abuse of
process sets their claim for prelitigation, administrative fora attorney fees apart from
other tort claims.
We agree that prelitigation, administrative fora attorney fees may qualify as
damages in certain types of abuse of process cases. For example, attorney fees are
recoverable as special damages in malicious civil prosecution actions where the fees
were necessitated by the defendant's intentional acts. See Rorvig v. Douglas, 123
Wash. 2d 854, 862, 873 P.2d 492(1994)(citing Aldrich v. Inland Empire Tel. & Tel.
55
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
Co., 62 Wash. 173, 176-77, 113 P. 264 (1911)). Attorney fees are also available in
abuse ofprocess cases. E.g.,Bellevue Farm Owners Ass'n v. Stevens, 198 Wash. App.
464, 478-79, 394 P.3d 1018, review denied, 189 Wash. 2d 1038, 413 P.3d 565 (2017).
But Maytown and the Port did not bring those types of claims. They brought
claims of tortious interference with a contract and business expectancy.'^ Whether
the reasons for awarding attorney fees as damages in civil malicious prosecution and
abuse of process claims extend to tortious interference claims is a question of first
impression for this court, but our analysis is guided by prior precedent.'^
Like malicious civil prosecution and abuse of process claims, a claim of
tortious interference with a contractual or business relationship can involve the
Maytown and the Port brought other claims, including a Section 1983 claim, but
they do not argue that those other claims form a basis for obtaining prelitigation,
administrative fora attorney fees. CP at 7496-508.
Maytown and the Port correctly observe that the trial court in Pleas v. City of
Seattle, 112 Wash. 2d 794, 799, 774 P.2d 1158 (1989), awarded prelitigation attorney fees to
Pleas as damages for the city of Seattle's tortious interference in the land use permitting
process and that we affirmed that award of attomey fees on appeal. But as Maytown and
the Port also recognize, the issue of whether prelitigation attomey fees was available as
damages for tortious interference claims was not at issue in Pleas. Resp'ts/Cross-
Appellants' Joint Reply in Supp. of Cross-Appeal at 3. We therefore had no reason to
address the issue. '"Where the literal words of a court opinion appear to control an issue,
but where the court did not in fact address or consider the issue, the mling is not dispositive
... In re Pers. Restraint ofStockwell, 179 Wash. 2d 588, 600, 316 P.3d 1007 (2014)
(quoting ETCO, Inc. v. Dep't ofLabor & Indus., 66 Wash. App. 302, 307, 831 P.2d 1133
(1992)).
56
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
misuse of courts and administrative fora for improper purposes. Pleas v. City of
Seattle, 112 Wash. 2d 794, 803-04,774 P.2d 1158(1989)(citing Top Serv. Body Shop,
Inc. V. Allstate Ins. Co., 283 Or. 201, 204, 582 P.3d 1365 (1978)). But malicious
civil prosecution and abuse of process claims require more than a defendant's ill
intent to support an award of attorney fees. "'[T]he mere institution of a legal
proceeding even with a malicious motive does not constitute an abuse of process.'"
Sea-Pac Co. v. United Food & Commercial Workers Local Union 44, 103 Wash. 2d
800, 806, 699 P.2d 217 (1985)(quoting Fite v. Lee, 11 Wash. App. 21, 27-28, 521
P.2d 964 (1974)). Nor does it constitute malicious civil prosecution.^"^ Petrich v.
McDonald,44 Wn.2d 211, 221-22, 266 P.2d 1047 (1954).
The tort of abuse of process requires misuse of a judicial proceeding to
accomplish an act for which the process was not designed. Sea-Pac, 103 Wash. 2d at
806 (quoting Fite, 11 Wash. App. at 27; Restatement(Second)of Torts § 682, at
474(Am. Law Inst. 1977)). In other words,'"there must be an act after filing suit
using legal process empowered by that suit to accomplish an end not within the
"Malice," for purposes ofa malicious prosecution claim,'"^''^may be satisfied by
proving that the prosecution complained of was undertaken from improper or wrongful
motives or in reckless disregard ofthe rights ofthe plaintiff, Orwickv. City ofSeattle,
103 Wash. 2d 249, 257, 692 P.2d 793 (1984)(quoting Bender v. City ofSeattle, 99 Wash. 2d
582, 594, 664 P.2d 492 (1983)(quoting Peasley v. Puget Sound Tug & Barge Co., 13
Wash. 2d 485, 502, 125 P.2d 681 (1942))).
57
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
purview of the suit.'" Id. (quoting Batten v. Abrams, 28 Wash. App. 737, 748, 626
P.2d 984(Am.Law Inst. 1981)). The crucial inquiry in abuse of process claims is
therefore "whether the judicial system's process, made available to insure the
presence of the defendant or his property in court, has been misused to achieve
another, inappropriate end." Gem Trading Co. v. Cudahy Corp.,92 Wn.2d 956,963
n.2, 603 P.2d 828(1979)(citing Gilmore v. Thwing, 167 Wash.457,459,9 P.2d 775
(1932); Rockv. Abrashin, 154 Wash. 51, 54, 280 P. 740(1929)).
For that reason, as we explained in Gilmore, abuse of process claims are
exceptionally rare. In Gilmore, we dismissed an abuse of process suit predicated
on a prior suit for writ of garnishment despite evidence that the defendant had
pursued the writ action out of a malicious desire to sully the plaintiffs reputation
and undermine his business. 167 Wash, at 459. We explained that an abuse of
process claim could not lie even if the jury found the writ was pursued with malice
and for an improper purpose because "if the writ had been rightfully issued, its
service upon the [plaintiffs] bank would have been rightful." Id. Thus, abuse of
process claims are generally limited in Washington to unlawful, quid pro quo
situations. An example of one such situation is where a judgment creditor uses the
judicial system to sequester wages and property that the creditor knows are legally
unattachable, but does so for the improper purpose of harassing and inducing the
58
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
debtor to pay the outstanding debt with property that is not legally subject to
execution. Rock, 154 Wash, at 53.
Like abuse of process cases, claims for malicious civil prosecution are also
narrowly circumscribed. A malicious civil prosecution claim in Washington
requires proof of a "special injury," which is defined as an ''''''injury which is not the
necessary result in such suitsC"^ Petrich, 44 Wash. 2d at 217 (quoting Manhattan
Quality Clothes, Inc. v. Cable, 154 Wash. 654, 657, 283 P. 460 (1929)(quoting
Abbott V. Thome, 34 Wash. 692, 694, 76 P. 302(1904))).
We have previously acknowledged that other jurisdictions have abandoned
the element ofa special injury in order to broaden the circumstances in which a party
may recover for malicious prosecution. Gem Trading,92 Wn.2d at 964;Petrich,44
Wn.2d at 219; see also RESTATEMENT(SECOND)OF XORTS § 674(discussing the tort
of wrongful use of civil proceedings).'^ But we declined to join those other
jurisdictions and instead reaffirmed that Washington follows a "stricter" and more
To the extent we suggested in Davis v. Cox, 183 Wash. 2d 269, 292, 351 P.3d 862
(2015), that attomey fees may be recoverable as damages under the tort of wrongful use of
civil proceedings described in Restatement (Second) of Torts § 674, we disavow that
suggestion. The issue in Davis was the constitutionality of Washington's anti-SLAPP
[strategic lawsuits against public participation] statute, RCW 4.24.525. We were not asked
to determine whether Washington recognized the tort of wrongful use of civil proceedings;
we therefore did not have to consider whether such approach would be consistent with our
restrictive view on abuse of process and malicious civil prosecution claims.
59
Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
"restrictive" approach in malicious civil prosecution cases. Petrich, 44 Wash. 2d at
219; Gem Trading, 92 Wash. 2d at 963-65.
Maytown and the Port's proposal that we expand the American rule to allow
parties to seek prelitigation, administrative fora attorney fees as damages in tortious
interference cases where the defendant misuses the administrative process to inflict
economic harm conflicts with those controlling decisions because it would eliminate
the quid pro quo or special injury elements of abuse of process and malicious civil
prosecution tort claims. Maytown and the Port have not proved that those
controlling decisions are incorrect and harmful. We are therefore bound by
principles ofstare decisis to apply that precedent. In re Rights to Waters ofStranger
Creek, 77 Wash. 2d 649, 653, 466 P.2d 508 (1970). We hold that Maytown and the
Port were not entitled to prelitigation, administrative fora attorney fees as damages
for their tortious interference claims.
Having determined that prelitigation, administrative fora attorney fees are not
available to Maytown and the Port as damages, we next address whether such fees
are recoverable under the bad faith exception to the American rule. As discussed
below, we hold that they are not.
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
2. The Bad Faith Exception to the American Rule Does Not Apply
to Prelitigation Attorney Fees
The American rule permits a court to award attorney fees "when doing so is
authorized by a contract provision, a statute, or a recognized ground in equity." Vinci
Constr., 188 Wash. 2d at 625 (citing Hamm v. State Farm Mut. Auto. Ins. Co., 151
Wn.2d 303,325,88 P.3d 395(2004)). We have found equitable grounds in a variety
of actions, including insurance coverage cases," surety coverage cases," the ABC
rule {supra note 11),'^ actions by injured seamen for maintenance and cure
payments,'^ and common fund actions.^'^ We have also said that attorney fees ''''could
be awarded if the prevailing party proved the opposing party acted in bad faith."
Clark V. Wash. Horse Racing Comm'n, 106 Wash. 2d 84, 93, 720 P.2d 831 (1986)
(listing cases).
Olympic S.S. Co. v. Centenniallns. Co., 117 Wash. 2d 37, 811 P.2d 673 (1991).
Vinci Constr., 188 Wash. 2d at 625-26.
LK Operating, 181 Wash. 2d at 123-24 (citing Blueberry Place Homeowners Ass'n
V. Northward Homes, Inc., 126 Wash. App. 352, 358, 110 P.3d 1145 (2005)).
Clausen v. Icicle Seafoods,Inc., 174 Wn.2d 70,78-79,272 P.3d 827(2012)(citing
Vaughan v. Atkinson, 369 U.S. 527, 82 S. Ct. 997, 8 L. Ed. 2d 88 (1962)).
Matsyuk v. State Farm Fire & Cas. Co., 173 Wash. 2d 643, 649-51, 272 P.3d 802
(2012).
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
Maj^own and the Port argue that they are entitled to prelitigation,
administrative fora attorney fees under the bad faith exception to the American
rule." Resp't/Cross-Appellants' Joint Resp.& Opening Br. at 97-98; Resp'ts/Cross-
Appellants' Joint Reply in Supp. of Cross-Appeal at 5-11.
Whether attorney fees should be granted under the bad faith exception
depends on '"["hhe justice of the cause or the facts and circumstances of the
particular case.^"^'" Clark, 106 Wash. 2d at 93 (quoting State ex rel. Maori v. City of
Bremerton, 8 Wash. 2d 93, 113, 111 P.2d 612(1941)(quoting 14 Am.Jur. Costs § 22,
at 16 (1938))). An award of attorney fees is proper under the bad faith exception
when the fees were incurred as a result of the "intentional and calculated action" of
the defendant that "[left] the plaintiff with only one course of action; that is,
litigation." Rorvig, 123 Wash. 2d at 862. In other words, where "the defendants
actually know their conduct forces the plaintiff to litigate" and the ability of the
plaintiffs to prove actual damages is difficult, an award for attorney fees may be
The County argues that Maytown and the Port never raised the bad faith exception
before the trial court. Pet'r's Suppl. Br. at 20 n.lO. The County is incorrect. See CP at
7506(Maytown and the Port's Joint Suppl. Br. responding to the County's motion in limine
regarding recovery of attomey fees as damages)("Washington Courts recognize that the
bad faith of the defendant can justify an award of attorneys' fees as costs of the damages
litigation.").
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granted. Id. "Fairness requires the plaintiff to have some recourse against the
intentional malicious acts ofthe defendant." Id.
But we have never applied the bad faith exception to prelitigation
administrative forum attorney fees. Nor can we find any other jurisdiction that has
applied the bad faith exception to that context. In fact, our research shows that all
jurisdictions that have considered whether the bad faith exception to the American
rule extends to recovery of prelitigation attorney fees have ruled that the answer is
no. E.g.,Ring V. Carriage House Condo. Owners'Ass'n,20\AYT 127, 198 Vt. 109,
125, 112 A.3d 754; Lamb Eng'g & Constr. Co. v. Neb. Pub. Power Dist, 103 F.3d
1422, 1435 (8th Cir. 1997); see also Chambers v. NASCO,Inc., 501 U.S. 32, 73-74,
Ills. Ct. 2123, 115 L. Ed. 2d 27 (1991) (Kennedy, J., dissenting, joined by
Rehnquist, C.J., and Souter, J.), Chambers, 501 U.S. at 60 (Scalia, J., dissenting).
They hold that to the extent such prelitigation attorney fees are recoverable, they are
recoverable only as damages under some type of abuse of civil proceedings claim,
not as costs or sanctions under the bad faith exception.
We agree. The bad faith exception to the American rule arises out of a court's
equitable power to regulate and manage the affairs ofthe court and the parties before
it. See Chambers, 501 U.S. at 46. Sanctioning parties for prelitigation conduct that
occurred before the court was involved and before litigation was initiated exceeds
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
the scope of that authority. Compensating aggrieved parties for harm caused by
malicious, prelitigation conduct fits more naturally within the meaning of damages
and is therefore limited to that context. Ring, 198 Vt. at 125. As discussed above,
Washington limits the situations in which such prelitigation attorney fees can be
recovered as damages, and those situations do not include the tortious interference
claims raised in this case.
This limit on prelitigation attorney fees does not, however, affect Maytown's
request for appellate attorney fees. As we discuss next, different rules apply to that
request.
D. The Court of Appeals Did Not Err in Awarding Maytown's Request
for Appellate Attorney Fees under RAP 18.1(b)
RAP 18.1 governs the award of appellate attorney fees. RAP 18.1(a) provides
that "[i]f applicable law grants to a party the right to recover reasonable attorney fees
or expenses on review before either the Court of Appeals or Supreme Court, the
party must request the fees or expenses as provided in [RAP 18.1], unless a statute
specifies that the request is to be directed to the trial court." When making a request
for attorney fees, RAP 18.1(b) states, "[t]he party must devote a section of its
opening brief to the request for the fees or expenses." (Emphasis added.)
Maytown's request for appellate attorney fees encompassed two sentences in
its opening brief. Together, these two sentences state,(1)"Maytown is . .. entitled
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
to damages under 42 U.S.C. § 1983, and attorneys' fees and costs under 42 U.S.C.
§ 1988 because the County, acting 'under color ofany statute, ordinance, regulation,
custom, or usage, of any State' subjected Maytown to a 'deprivation of Maytown's
Constitutional right to substantive due process" and(2)"the Court should ... award
costs and attorneys' fees in accordance with 42 U.S.C. §§ 1983 & 1988 and RAP
18.1; and . . . award cost of appeal to Plaintiffs in accordance with RAP 14."
Resp't/Cross-Appellants' Joint Resp. & Opening Br. at 78, 98-99.
The Court of Appeals granted Maytown's request for appellate attorney fees.
Maytown, 198 Wash. App. at 593.
The County argues that Maytown's request for appellate attorney fees was
procedurally defective because it did not include a separate section "devote[d]"
entirely to the request for attorney fees. RAP 18.1(b).
Maytown argues RAP 18.1 does not apply to a request for attorney fees under
Section 1983 and that even ifthe rule did apply,RAP 18.1 does not require a separate
section devoted entirely and exclusively to the request. Alternatively, Maytown
argues that the County waived any objection to the form of Maytown's request for
appellate attorney fees when it failed to raise that objection in the Court of Appeals.
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We review a grant of appellate attorney fees under RAP 18.1 for an abuse of
discretion. In re Marriage ofBuecking, 179 Wn.2d 438,455, 316 P.3d 999(2013).
But "[t]he interpretation of a court rule presents a question oflaw that we review de
novo." State v. Stump, 185 Wash. 2d 454, 458, 374 P.3d 89 (2016)(citing Jafar v.
Webb, 177 Wn.2d520, 526, 303 P.3d 1042(2013)). We hold that RAP 18.1 applies
to requests for appellate attorney fees under Section 1983 and that Maytown
complied with RAP 18.1's requirements. Because we uphold the Court of Appeals'
award of appellate attorney fees, we do not address Maytown's alternative argument
about waiver.
7. The Reverse-EnQ Doctrine Does Not Bar State Courts from
Applying RAP 18.1(b) to Requestsfor Appellate Attorney Fees
under 42 U.S.C. §§ 1983 and 1988
Maytown argues that RAP 18.1 does not apply to Section 1983 claims for
appellate attorney fees. Suppl. Br. of Resp't Maytown Sand & Gravel, LLC at 15-
16. Maytown argues that a state court reviewing claims under federal Sections 1983
and 1988 cmust apply federal law,including federal procedural rules. This argument
requires us to evaluate the applicability ofRAP 18.1(b) under the so-called Reverse-
Erie" doctrine.
"Erie" refers the United States Supreme Court decision in Erie Railroad Co. v.
Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
The primary concerns of the Erie and Rcvcrsc-.Er/e doctrines arc threefold:
encouraging judicial economy, deterring forum shopping, and protecting principles
of federalism. "Under R. Co. v. Tompkins, 304 U.S. 64[, 58 S. Ct. 817, 82 L.
Ed. 1188](1938), when afederal court exercises diversity or pendent jurisdiction
over state-\sm claims, 'the outcome of the litigation in the federal court should be
substantially the same, so far as legal rules determine the outcome of a litigation, as
it would be iftried in a State court.'" Felder v. Casey, 487 U.S. 131, 151, 108 S. Ct.
2302, 101 L. Ed. 2d 123 (1988)(emphasis added)(quoting Guaranty Trust Co. v.
York, 326 U.S. 99, 109, 65 S. Ct. 1464, 89 L. Ed. 2079 (1945)). The converse of
that rule applies under the Reverse-jBrze doctrine. "Just as federal courts are
constitutionally obligated to apply state law to state claims, so too the Supremacy
Clause imposes on state courts a constitutional duty 'to proceed in such manner that
all the substantial rights ofthe parties under controlling federal law [are] protected.'"
Id. (alteration in original)(citation omitted)(quoting Garrett v. Moore-McCormack
Co., 317 U.S. 239, 245, 63 S. Ct. 246, 87 L. Ed. 239(1942)).
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Under the Reverse-Er/e doctrine, state courts must apply federal proof
standards" and federal waiver standards^"^ to federal claims and defenses. State
courts cannot impose state notice-of-claim requirements" or heightened state
pleading requirements" that burden plaintiffs with having to prove more in state
court than they would be required to prove had they brought their federal claims in
federal court.
But a state court is generally allowed to apply state procedural rules, such as
rules defining what trial court orders are immediately appealable, even ifthose state
procedural rules conflict with federal procedural rules of general applicability.
Johnson v. Fankell, 520 U.S. 911, 921, 117 S. Ct. 1800, 138 L. Ed. 2d 108 (1997).
A state procedural rule is generally applicable to federal claims if it is a neutral state
rule regarding the administration of the courts that is not meant to interfere with a
substantive federal right and allows a party to raise or defend against the federal
claim as if in federal court. Id. at 919-21.
23 Cent. Vt. Ry. Co. v. White, 238 U.S. 507, 512, 35 S. Ct. 865, 59 L. Ed. 1433
(1915).
2^* Garrett, 317 U.S. at 249; Dice v. Akron, Canton & Youngstown R.R. Co., 342
U.S. 359, 361-62, 72 S. Ct. 312, 96 L. Ed. 398 (1952).
"Felder,4Sl U.S. at 138.
26 Brown v. W. Ry. of Ala., 338 U.S. 294, 298-99, 70 S. Ct. 105, 94. L. Ed. 100
(1949).
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RAP 18.1(b) meets all three Johnson criteria. It is a neutral court rule
governing the general administration of cases. It is not intended to interfere with or
substantially alter a party's ability to seek appellate attorney fees in state courts. And
it does not require a party to prove more or provide greater notice than that required
under federal law. RAP 18.1(b) requires a party requesting appellate attorney fees
to do so only in "a separate section" of its opening brief.
2. RAP 18.1(b) Does Not Require a Separate Section Devoted
Entirely and Exclusively to the Requestfor Appellate Attorney
Fees
The County argues that RAP 18.1 requires a separate section devoted entirely
and exclusively to the request for appellate attorney fees. The Court of Appeals
apparently disagreed, because it granted Maytown's attorney fees request, and we
are loath to disturb that court's decision on attorney fees in that court.
That is particularly true here. The County's argument relies essentially on
two cases: Wilson Court Ltd. Partnership v. Tony Maroni's, Inc., 134 Wash. 2d 692,
710 n.4, 952 P.2d 590 (1998), and Zuver v. Airtouch Communications, Inc., 153
Wash. 2d 293, 321 n.21, 103 P.3d 753 (2004).
Wilson involved a single sentence request, seeking "recover[y of] its costs and
attorneys' fees on appeal," made without citation in the conclusion paragraph ofthe
party's opening brief. Suppl. Br. of Resp't Wilson Court at 14, Wilson Court Ltd.
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
P'ship V. Tony Maroni's, Inc., No. 64766-6 (Wash.), reprinted in 13 Briefs 134
Wn.2d (1997). We held that that single, generic sentence in the conclusion
paragraph ofthe brief was insufficient. Wilson, 134 Wn.2dat710n.4. We explained
that "[ajrgument and citation to authority are required under the rule to advise us of
the appropriate grounds for an award of attorney fees as costs." Id. at 711 n.4 (citing
Austin V. U.S. Bank of Wash., 73 Wash. App. 293, 313, 869 P.2d 404 (1994)). Here,
Maytown provided more than a single, generic sentence at the end of its brief.
Maytown provided two sentences, one at the end and another in the body ofits brief.
Maytown also provided a legal basis for its request.
The request for appellate attorney fees in Zuver more closely matches the
request here. In Zuver, the request was not made in the conclusion paragraph, and
it included the party's basis for seeking attorney fees. The request stated, that "Ifthis
Court affirms the trial court's decision, AirTouch requests that the Court award it
fees in connection with this appeal pursuant to the Arbitration Agreement." Br. of
Resp'ts at 50 n.38, Zuver v. Airtouch Comma'ns, Inc., No. 74156-5 (Wash.),
reprinted in 4 Briefs 153 Wn.2d (2004). But the request was made in a footnote
rather than in the body ofthe brief. We held that the request was insufficient because
"RAP 18.1(b)... requires that '[t]he party must devote a section of its opening brief
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Maytown Sand and Gravel, LLC v. Thurston County, No. 94452-1
to the request for the fees or expenses.'" Zuver, 153 Wash. 2d at 321 n.21 (emphasis
added)(second alteration in original).
By contrast, Maytown's request for appellate attorney fees under Section 1983
was included in the body (not a footnote) of Maytown's opening brief before the
Court of Appeals, in a separate section devoted entirely to arguments under that
section, and included the legal basis for the request. The Court of Appeals was
certainly entitled to conclude that that sufficed. The request sufficiently apprised
the parties and the Court ofAppeals ofthe nature of Maytown's request and the legal
basis for it. We therefore affirm the Court of Appeals' award of appellate attorney
fees.
IV. Conclusion
The Court of Appeals correctly held that LUPA's administrative exhaustion
requirement does not bar the tort claims Maytown and the Port brought in this case.
Maytown and the Port challenged the County's tortious acts committed during the
land use decision-making process, not any particular land use decision itself. The
appellate court also correctly held that there was sufficient evidence to support the
jury's decision that the County violated Maytown's substantive due process rights.
In addition, that court correctly awarded Maytown its appellate attorney fees for
prevailing on its Section 1983 claim. The Court of Appeals, however, incorrectly
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held that Maytown and the Port were entitled to recover prelitigation, administrative
fora attorney fees as damages. We therefore affirm the Court of Appeals in part and
reverse in part.
Because Maytown prevailed on its Section 1983 claim in this court, we also
grant Maytown's request for appellate attorney fees and costs incurred before this
court related to that claim. 42 U.S.C. § 1988; Jacobsen v. City ofSeattle, 98 Wn.2d
668,675-76,658 P.2d 653(1983)(A prevailing plaintiff under a Section 1983 claim
'"should ordinarily recover an attorney's fee [related to that claim] unless special
circumstances would render such an award unjust.'" (quoting Newman v. Piggie
Park Enters., Inc., 390 U.S. 400, 402, 88 S. Ct. 964, 19 L. Ed. 2d 1263 (1968))).
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WE CONCUR:
. C4) ■
y.
73